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July 2020

Can employees access paid personal/carer’s leave & compassionate leave during a stand down?

Can employees access paid personal/carer’s leave & compassionate leave during a stand down?

The Case

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Qantas Airways Limited (2020)

In March 2020, due to the COVID-19 pandemic, Qantas Airways Limited (Qantas) stood down, without pay, many of its staff. During the stand down, Qantas refused to allow staff to access their paid personal/carer’s leave and compassionate leave entitlements, despite applicable circumstances.

A number of unions representing the employees filed a claim in the Federal Court. They alleged that Qantas’ refusal to allow employees to access their accrued paid personal/carer’s leave and compassionate leave entitlements breached the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act).

Qantas argued that because the employees were stood down, the NES did not apply.

The Fair Work Ombudsman (FWO) had indicated it believed employees were entitled to access their accrued paid personal/carer’s leave and compassionate leave entitlements during the stand down.

The Verdict

Flick J of the Federal Court held that:

  • employees who are stood down without pay cannot access paid personal/carer’s leave and compassionate leave entitlements;
  • the NES entitlement to paid personal/carer’s leave and compassionate leave arises when an employee would otherwise be performing work;
  • under a stand down arrangement, no work was required to be performed, so there was no entitlement to take paid personal/carer’s leave and compassionate leave;
  • paid personal/carer’s leave and compassionate leave was a form of ‘income protection’ contingent upon the employee being in receipt of income, and as no work was available and no income was being paid to employees during the stand down, there was no income to protect; and
  • paid personal/carer’s leave and compassionate leave is paid when an employee is absent from work. During a stand down, no work is performed, so there was no absence from work.

The Lessons

It is important to ensure there are grounds to lawfully stand down staff before implementing a stand down. However, given this decision, in circumstances where employers lawfully stand down employees, they will not be required to provide employees with access to paid personal/carer’s leave or compassionate leave.

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